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Prisoner Voting in Scotland Published in Scotland by the Scottish Parliamentary Corporate Body

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Prisoner Voting in Scotland Published in Scotland by the Scottish Parliamentary Corporate Body Published 14 May 2018 SP Paper 315 3rd Report, 2018 (Session 5) Equalities and Human Rights Committee Comataidh Co-ionnanachd agus Còraichean Daonna Prisoner Voting in Scotland Published in Scotland by the Scottish Parliamentary Corporate Body. All documents are available on the Scottish For information on the Scottish Parliament contact Parliament website at: Public Information on: http://www.parliament.scot/abouttheparliament/ Telephone: 0131 348 5000 91279.aspx Textphone: 0800 092 7100 Email: [email protected] © Parliamentary copyright. Scottish Parliament Corporate Body The Scottish Parliament's copyright policy can be found on the website — www.parliament.scot Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) Contents Introduction ____________________________________________________________1 Background ____________________________________________________________2 The European Convention on Human Rights (ECHR) __________________________4 Recent UK developments _________________________________________________6 Practicalities of voting in prison ___________________________________________8 Conclusion ___________________________________________________________10 Prisoners' engagement with elections _____________________________________12 Conclusion ___________________________________________________________12 Politicians' engagement with prisoners ____________________________________13 Continuation of the ban on voting for prisoners serving custodial sentences_____15 Partial ban on prisoners voting ___________________________________________19 Enfranchising all prisoners to vote ________________________________________21 Other electoral matters __________________________________________________24 Overall conclusion _____________________________________________________25 Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) Equalities and Human Rights Committee To consider and report on matters relating to equal opportunities and upon the observance of equal opportunities within the Parliament (and any additional matter added under Rule 6.1.5A). In these Rules, “equal opportunities” includes the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds or on grounds of disability, age, sexual orientation, language or social origin or of other personal attributes, including beliefs or opinions such as religious beliefs or political opinions. Human rights, including Convention rights (within the meaning of section 1 of the Human Rights Act 1998) and other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom. http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/ Equalities-Human-Rights-Committee.aspx [email protected] 0131 348 6040 Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) Committee Membership Convener Deputy Convener Christina McKelvie Alex Cole-Hamilton Scottish National Party Scottish Liberal Democrats Mary Fee Jamie Greene Scottish Labour Scottish Conservative and Unionist Party Fulton MacGregor Gail Ross Scottish National Party Scottish National Party Annie Wells Scottish Conservative and Unionist Party Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) Introduction 1. Section 3 of the Representation of the People Act 1983 1 (the 1983 Act) bans all prisoners serving custodial sentences from voting in elections to the UK Parliament, the Scottish Parliament, the European Parliament, the Welsh and Northern Ireland Assemblies and local government elections. This ban applies irrespective of the length of sentence. It does not apply to people held in prison on other grounds, such as those remanded in custody pending trial. 2. Until recently, the rules on the electoral franchise were reserved to Westminster. Section 3 of the Scotland Act 2016 2 included provisions giving the Scottish Parliament powers over voting in local and Scottish Parliament elections. The UK regulations bringing these provisions into force were made on 18 May 2017. 3 The Scottish Parliament can now legislate on prisoner voting for these elections. 3. The 2016 Act also set up new "super-majority" rules for many electoral law issues, requiring Bills to have a two-thirds majority to pass. 4 Matters related to "persons entitled to vote" fall within the new super-majority rules. A prisoner voting bill would therefore need a two-thirds majority in the Scottish Parliament to become legislation. 4. Patrick Harvie MSP wrote to us on 15 June 2017 requesting that we include consideration of prisoner voting as part of our work programme now that the Scottish Parliament had “greater devolved responsibility for the democratic process”. He believed that alternatives to the blanket ban must be actively considered if further legal challenges were to be avoided. 5 1 Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) Background Approach to evidence gathering 5. On 29 June, we considered Patrick Harvie’s letter and agreed to undertake an evidence session on 7 September 2017 to examine the current UK position, the practical issues around voting in prisons, and also the arguments for and against allowing prisoners to vote. We heard from Patrick Harvie MSP; Beverley Smith, a former offender; Chris Highcock, Secretary, Electoral Management Board for Scotland; Michael Clancy, Director of Law Reform, Law Society of Scotland; Tom Halpin, Chief Executive, Sacro; Professor Fergus McNeill, Scottish Centre for Crime & Justice Research; Pete Wildman, Chair of the Electoral Registration Committee, Scottish Assessors Association; Lucy Hunter Blackburn, Executive Committee Member, Howard League for Penal Reform Scotland; David Strang, Her Majesty's Chief Inspector of Prisons for Scotland, HM Inspectorate of Prisons for Scotland; Jan Anderson, Access to Industry. 6. After this session we wrote to the Lord President of the Court of Session, Victim Support Scotland, and Dr Cormac Behan, Lecturer in Criminology at the Centre for Criminological Research, University of Sheffield, to follow-up on some issues raised in evidence. We agreed to hold a further evidence session to explore these issues in more detail. 7. We also wrote to Joe Fitzpatrick MSP, the Minister of Parliamentary Business, on 22 September 6 to establish whether the Scottish Government would be including prisoner voting in its forthcoming consultation on electoral reform. This consultation was proposed in the Scottish Government’s legislative programme for 2016/17, published in September 2016, A Plan For Scotland: The Scottish Government's Programme For Scotland 2016-2017. we will take forward a consultation exercise to find out what electoral reforms Scottish citizens would like to see taken forward in future legislation. 8. The Minister for Parliamentary Business responded on 11 October and advised— The scope of the exercise is likely to be reasonably broad covering a range of measures to improve the running of elections and aspects of the new powers devolved in the Scotland Act 2016. Given the Committee’s on-going consideration of the matter the consultation will not cover prisoner voting. 9. On 25 January 2018, we took oral evidence from Dr Cormac Behan, Lecturer in Criminology at the Centre for Criminological Research, University of Sheffield, and Emma Trottier, former public servant with the Correctional Service of Canada and the Department of Public Safety, Government of Canada, to consider international comparators. 10. A number of submissions and witnesses, for example, from electoral organisations and government agencies, such as, the Scottish Prison Service, pointed out they could discuss current processes and the potential impact on their service, but would not make comment on the principle of extending the franchise to prisoners as this was a matter for the Scottish Parliament and the Scottish Government. 2 Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) 11. During our consideration of prisoner voting, the UK position on prisoner voting changed (see paragraphs 23-28). It should be noted that evidence received prior to our meeting of 25 January does not take account of this development. We agreed to continue with our investigation as many of the arguments presented, and the issues outlined, remained relevant despite recent developments. 12. We would like to thank all those who contributed to our consideration of the issues. 3 Equalities and Human Rights Committee Prisoner Voting in Scotland, 3rd Report, 2018 (Session 5) The European Convention on Human Rights (ECHR) 13. The UK electoral rules, set out in the 1983 Act were challenged more than ten years ago in the European Court of Human Rights (ECtHR) in the case of Hirst v United Kingdom (No 2) 7 . On 6 October 2005, the court ruled in the Hirst case that the ban breached Article 3 of Protocol No 1 of the European Convention on Human Rights (the Convention) which requires states to: hold free elections (…) under conditions which will ensure the free expression of the opinion of the people. 8 14. The court emphasised that electoral legislation differs widely in Europe and that human rights law gives Council of Europe States a wide degree of discretion (known as "margin of appreciation") in setting electoral
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